decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Tuesday, October 05 2010 @ 02:06 PM EDT

Google has filed its Answer with Counterclaims [PDF] to Oracle's patent and copyright infringement complaint, and how! It's a very aggressive and confident response to Oracle's complaint. Google asks that Oracle's complaint be dismissed, for a judgment in favor of all its counterclaims, for a declaratory judgment that Google has not infringed or contributed to any infringement of any of the patents, a declaration of the invalidity of all the Oracle patents, and a declaration that all Oracle's claims are barred by laches, equitable estoppel and/or waiver, and unclean hands. It wants Oracle to have to pays its costs and expenses of this litigation, including Google's attorneys' fees and expert witness fees, asking for a judgment that this is an exceptional case warranting it.

Google also filed a motion to dismiss [PDF] the copyright infringement claim, Claim VIII, or for a more definite statement. The complaint doesn't tell them what exactly they are supposed to have done wrong, Google says. They'd like to know. Android has over 11 million lines of code, so where does Google look to find the alleged infringement? It's an operating system, so there are a lot of components, and so it could be code, documentation, specifications -- so what is it precisely Google, or others, supposedly did wrong?

Do we have any volunteers in the San Francisco area who can attend hearings as this goes forward? The motion to dismiss is set for a hearing on November 18th, so if you can volunteer, email me please, and I'll fill you in with what you need to know.

Let's take a look at both filings. And I have the motion to dismiss as text.

The Answer with Counterclaims:

Here is the specific language in the relief section, showing what Google asks for in the Answer with Counterclaims:

WHEREFORE, Google prays for judgment as follows:
a. A judgment dismissing Oracle’s Complaint against Google with prejudice;

b. A judgment in favor of Google on all of its Counterclaims;

c. A declaration that Google has not infringed, contributed to the infringement of, or induced others to infringe, either directly or indirectly, any valid and enforceable claims of the Patents-in-Suit;

d. A declaration that the Patents-in-Suit are invalid;

e. A declaration that Oracle’s claims are barred by the doctrines of laches, equitable estoppel, and/or waiver;

f. A declaration that the Oracle’s claims are barred by the doctrine of unclean hands;

g. A declaration that this case is exceptional and an award to Google of its reasonable costs and expenses of litigation, including attorneys’ fees and expert witness fees; and

h. Such other and further relief as this Court may deem just and proper.

Ah. Unclean hands. This could get interesting.

What could Oracle be thinking? Android was independently developed except for "a subset" of Apache Harmony libraries:

13. The Android platform includes, among other things, the Android Software Development Kit (“SDK”) and the Dalvik Virtual Machine (“VM”). The Dalvik VM relies on a version of the Linux kernel for core system services such as security, memory management, process management, network stack, and driver model, and as an abstraction layer between the hardware and the rest of the software stack. The core class libraries of the Dalvik VM incorporate a subset of Apache Harmony, a clean room, open source implementation of Java from the Apache Software Foundation. Other than the Harmony libraries, the Android platform, including, without limitation, the Dalvik VM, was independently developed by the OHA.

Here's some water under the bridge Google highlights, from the history of Java:

6. Upon information and belief, Sun also released the specifications for Sun’s Java platform, including Sun’s Java virtual machine, under a free-of-charge license that can be found at http://java.sun.com/docs/books/jls/third_edition/html/jcopyright.html and http://java.sun.com/docs/books/jvms/second_edition/html/Copyright.doc.html, respectively. The license allows developers to create “clean room” implementations of Sun’s Java specifications. If those implementations demonstrate compatibility with the Java specification, then Sun would provide a license for any of its intellectual property needed to practice the specification, including patent rights and copyrights. One example of a “clean room” implementation of Sun’s Java is Apache Harmony, developed by the Apache Software Foundation. The only way to demonstrate compatibility with the Java specification is by meeting all of the requirements of Sun’s Technology Compatibility Kit (“TCK”) for a particular edition of Sun’s Java. Importantly, however, TCKs were only available from Sun, initially not available as open source, were provided solely at Sun’s discretion, and included several restrictions, such as additional licensing terms and fees. In essence, although developers were free to develop a competing Java virtual machine, they could not openly obtain an important component needed to freely benefit from Sun’s purported open-sourcing of Java.

7. Sun came under significant criticism from members of the open source community, including Oracle Corp., for its refusal to fully open source Java. For example, in August of 2006, the Apache Software Foundation (“ASF”), a not-for-profit corporation that provides organizational, legal, and financial support for open source software projects, attempted to obtain a TCK from Sun to verify Apache Harmony’s compatibility with Java. Although Sun eventually offered to open source the TCK for Java SE, Sun included field of use (“FOU”) restrictions that limited the circumstances under which Apache Harmony users could use the software that the ASF created, such as preventing the TCK from being executed on mobile devices. In April of 2007, the ASF wrote an open letter to Sun asking for either a TCK license without FOU restrictions, or an explanation as to why Sun was “protect[ing] portions of Sun’s commercial Java business at the expense of ASF’s open software” and violating “Sun’s public promise that any Sun-led specification [such as Java] would be fully implementable and distributable as open source/free software.” However, Sun continued to refuse the ASF’s requests.

8. Oracle Corp., as a member of the Executive Committee (“EC”) of the Java Community Process (“JCP”), the organization tasked with managing Java standards, voiced the same concerns regarding Sun’s refusal to fully open source the Java platform. Later that year, in December of 2007, during a JCP EC meeting, Oracle Corp. proposed that the JCP should provide “a new, simplified IPR [intellectual property rights] Policy that permits the broadest number of implementations.” At that same meeting, BEA Systems – which at the time was in negotiations that resulted in Oracle Corp. purchasing BEA – proposed a resolution that TCK licenses would be “offered without field of use restrictions . . . enabling the TCK to be used by organizations including Apache.” Oracle Corp. voted in favor of the resolution.

9. Just over a year later, in February of 2009, Oracle Corp. reiterated its position on the open-source community’s expectation of a fully open Java platform when it supported a motion that “TCK licenses must not be used to discriminate against or restrict compatible implementations of Java specifications by including field of use restrictions on the tested implementations or otherwise. Licenses containing such limitations do not meet the requirements of the JSPA, the agreement under which the JCP operates, and violate the

expectations of the Java community that JCP specs can be openly implemented.”

10. Only a couple of months later, in April of 2009, Oracle Corp. announced that it would be acquiring Sun (renamed Oracle America after the acquisition was completed in January of 2010). Since that time, and directly contrary to Oracle Corp.’s public actions and statements, as well as its own proposals as an executive member of the JCP, Oracle Corp. and Sun (now Oracle America) have ignored the open source community’s requests to fully open-source the Java platform.

This history does make Oracle look bad, taking one position before it owned Java and the opposite the moment it obtained it. And here's a detail that matters in any copyright infringement litigation:
17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform.
Here's another:
19. Although software applications for the Android platform may be written in the Java programming language, the Dalvik bytecode is distinct and different from Java bytecode. The Dalvik VM is not a Java VM.
As for patents, Google states pointblank that it doesn't infringe:
24. Google does not infringe any valid and enforceable claim of the Patents-in-Suit, either directly or indirectly.
And here's what matters in the patent context, repeated after each claim:
30. This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Complaint with knowledge of the facts stated in this Counterclaim.
That means they will be asking, as you saw in the relief section, that they think Oracle should have to pay them for the expense of answering and defending against the patent infringement litigation.

The Motion to Dismiss:

Google explains what it feels is wrong with the copyright claim:

In support of this motion, Google respectfully shows that the claim for copyright infringement asserted in Count VIII of the Complaint is legally deficient. Count VIII does not identify any specific infringing work that is the subject of the alleged copyright infringement claim, does not identify with any specificity the manner in which Google allegedly infringed any copyrights of plaintiff Oracle America, Inc. ("Oracle"), and does not identify with any specificity the basis for any claim of vicarious infringement, inducement of infringement, or contributory infringement. As a result, Count VIII fails to state a claim for relief upon which relief can be granted. In the event that Count VIII is not dismissed, Google requests in the alternative that the Court enter an order requiring Oracle to provide a more definite statement of its claim of copyright infringement that provides sufficient detail so that Google may reasonably prepare a response to Oracle's claim.
That's interesting, because I couldn't figure it out either. There is no way, from the complaint, to know why Oracle thinks it has such a claim. I thought we'd find out when Google responded, but they don't know either. Google explains further:
Count VIII of Oracle's Complaint seeks to assert a claim of copyright infringement against some unidentified portion of the Android "platform," which includes a variety of different types of materials, including software code, computer programs, specifications, reference materials and developer tools and resources. Count VIII, however, is so vague and general that it is impossible for Google to determine from the Complaint:
  • which portion or portions of the Android "platform" are the subject of the copyright infringement claim;

  • how Google allegedly infringed the copyrights in the two works identified in paragraph 11 and Exhibit H of Oracle's Complaint (the "Asserted Copyrights");

  • how any "users" of the Android platform may have allegedly infringed the Asserted Copyrights; or

  • how Google allegedly "encouraged, induced, caused, [or] materially contributed to" any acts of copyright infringement by any such other parties.
As a result of these deficiencies, Oracle's claim of copyright infringement fails to meet the pleading standards applicable to a claim of copyright infringement.

....Rather than allege facts to support its claim, Oracle instead pleads nothing more than a rote recitation of certain of the exclusive rights the Copyright Act provides in 17 U.S.C. § 106, with absolutely no supporting facts. Like the complaints in both Miller and Cutler, there is no factual allegation as to how any Google materials relating to Android allegedly infringe the Asserted Copyrights. See Compl. ¶ 39. Indeed, Oracle fails to provide any assertion as to which part of Android — which even Oracle concedes is an "operating system software platform" consisting of numerous types and extensive amounts of materials, Compl. ¶ 12 — allegedly infringes the Asserted Copyrights. See Compl. ¶ 39. Oracle's Complaint is precisely the type of bare recitation of elements that the Supreme Court warned against in Iqbal....

The Complaint also does not include any explanation or identification whatsoever of any alleged unlicensed acts of infringement of the Asserted Copyrights by any other party (including those for which Oracle seeks to hold Google vicariously liable) or any alleged acts of Google that constitute inducement of infringement or contributory infringement with respect to any such alleged unlicensed acts of others.

Oracle has to fill in the blanks, if the judge agrees the complaint is deficient, or the claim can indeed be dismissed. The idea in the law is that you have to tell what your claim is, so the other side has a chance to defend itself. If you recall, SCO was sanctioned for not telling what it claimed IBM did wrong, so that later when it wanted to add materials, it was not allowed to. The magistrate judge said they were like a store detective grabbing someone leaving the store, claiming they stole something, but not saying what, instead handing the person a catalog and telling them, "What you stole is in the catalog somewhere, so you find it. You know what you took."

That doesn't fly in copyright infringement litigation. You have to tell. But what is really interesting here is the tone and one twist. Android, Google points out, is open source. The whole world can read the source code, so there is no excuse for Oracle not to be specific:

The deficiencies in Oracle's copyright infringement claim are both striking and telling in view of the fact that Android is an open-source platform, and that all of the relevant source code and documentation for Android is currently — and has for some time been — publicly available. Oracle's inadequately-pleaded accusations are striking because Oracle has had complete access to every piece of information that is relevant to any possible assertion of copyright infringement, yet Oracle still failed to meet even the minimum pleading standards. Oracle's inadequately-pleaded accusations are also telling because, notwithstanding Oracle's access to the allegedly infringing work, Oracle has not articulated a legally sufficient claim that puts Google on notice of either the factual basis or the substance of Oracle's copyright claim.
I pick up from the tone that Google is mad, not worried about the outcome, and that it intends to fight to the death on Claim VIII. I might be reading too much into it, but I don't think so. The lawyers take their stance based on what the client has told them it wants and based on what they expect will be the outcome. Usually at this point in litigation, the filings are fairly bland, though. Both sides try to reveal as little as possible, because discovery is coming and they don't want to help the other side at all or get stuck in something they said too soon, knowing that cases morph as more information gets known. Here, the language is stronger than that, and I believe it indicates that Google believes that this motion has a good shot at being granted, or rather that it believes that it *should* be granted. It's pretty hard to predict what a judge will or won't do, particularly at the beginning, but Google isn't afraid. That's what I see.

Here's one detail that might explain why Google feels confident:

As to Oracle's copyright claim, the Complaint alleges that "Oracle America owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform" and that "Oracle America's Java-related copyrights are registered with the United States Copyright Office, including those attached as Exhibit H." Compl. ¶ 11. Exhibit H to the Complaint consists of certificates of copyright registrations obtained by Sun for two identified works, named "Java 2 Standard Edition 1.4" and "Java Standard Edition, Version 5.0" (the "Asserted Copyrights"). Compl. Ex. H. These registrations appear to relate to versions of certain Sun Java materials that were released as open-sourced software in 2006 and 2007.
Obviously, if that proves to be so, the claim goes poof. There is no copyright infringement of open source code if you just use it according to the license. If that was a mistake on Oracle's part, then the final footnote tells us what Google thinks Oracle should do:
26 Oracle also contends that the "copyrightable" portions of the "Java platform" include, "without limitation code, specifications, documentation, and other materials." Compl. ¶ 38. To the extent Oracle believes that Google has infringed or is liable for infringement by any party of the copyrights in any works other than those that are the subject of the two registrations included in Exhibit H to the Complaint, Oracle should identify any and all such other works and the copyright registrations for them. See Sega, 1992 U.S. Dist. LEXIS 4621, at *4.
All Google says it can figure out about Oracle's claim is that there are apparently two types of copyright infringement in Oracle's mind: direct copying and vicarious liability for copying others have done:
Count VIII of the Complaint — the copyright infringement claim — alleges generally that "[t]he Java platform contains a substantial amount of original material (including without limitation code, specifications, documentation, and other materials) that is copyrightable subject matter." Compl. ¶ 38. The two operative paragraphs of Count VIII then state as follows:

39. Without consent, authorization, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America's copyrighted work, portions thereof, or derivative works and continues to do so. Google's Android infringes Oracle America's copyrights in Java and Google is not licensed to do so.

40. On information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America's copyrightable works, and works derived therefrom.

Compl. ¶¶ 39-40.

These paragraphs are mere conclusory statements apparently intended to assert two different types of copyright infringement claims against Google. First, Oracle apparently contends in paragraph 39 that Google itself infringes the Asserted Copyrights because "Google . . . copied, prepared, published and distributed Oracle America's copyrighted work, portions thereof, or derivative works and continues to do so." Compl. ¶ 39 (emphasis added). Second, Oracle apparently contends that Google is vicariously liable for alleged infringement of the Asserted Copyrights by others because "[o]n information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices" and that, for reasons that are not explained, Google allegedly "has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America's copyrightable works." Compl. ¶ 40 (emphasis added).

"On information and belief" is a phrase you use in legal papers when you don't actually know in the "I can prove it" sense, but you think it's true. You heard it on the grapevine. Well, a bit more than that, but it's weaker than stating that this or that happened. It means often that the party saying it hopes to prove it after discovery lets them dig in to find evidence.

On the vicarious liability part, Google says it's totally impossible to know what Oracle means:

Oracle's Complaint asserts only that third parties infringe the Asserted Copyrights because "users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform." Compl. ¶ 40. Neither "obtaining" nor "using," however, are among the exclusive rights of a copyright owner under the copyright statute. See 17 U.S.C. § 106. For this reason alone, the claim of vicarious liability for infringement should be dismissed. Oracle also fails to identify any works of third parties that allegedly infringe the Asserted Copyrights, any specific acts of any third parties that allegedly infringe Oracle's copyright rights, or any acts of Google that allegedly induced or contributed to any such infringement. Oracle's claim against Google of vicarious liability for copyright infringement therefore fails to adequately state a claim for infringement.
So, who did what where? Specifics please, Google says, if the judge doesn't toss it out completely, which it hopes he will. Google probably has a clue or two what Oracle is probably thinking, but Oracle does have to flesh this out. The law is that Google isn't supposed to have to guess.

The best part of these filings is that Google explains Android, so technically we can follow along, with lots of footnotes. They don't do it for us; it's for the judge. But it's nice to be able to follow along, and I'm glad to see that Google realizes how important it is for the judge to understand the underlying tech. But it also indicates that Google feels quite confident of the ultimate outcome, in the sense that they do not believe they have done anything wrong with respect to copyrights. They put it all out on the table, therefore. Actually, it's open source, so it's out there already. Now it's time for Oracle to put its cards on the table too.

Here are all the filings, and you see two lawyers from King & Spalding have amended their notice of appearance:

10/01/2010 - 30 - NOTICE of Appearance by Donald Frederick Zimmer, Jr and Cheryl A. Sabnis -- Defendant's AMENDED Notice of Appearance of Counsel (Zimmer, Donald) (Filed on 10/1/2010) (Entered: 10/01/2010)

10/04/2010 - 31 - NOTICE of Appearance by Donald Frederick Zimmer, Jr Application of Bruce W. Baber for Admission of Attorney Pro Hac Vice and [Proposed] Order Granting Application of Bruce W. Baber for Admission of Attorney Pro Hac Vice (Attachments: # 1 Proposed Order)(Zimmer, Donald) (Filed on 10/4/2010) (Entered: 10/04/2010)

10/04/2010 - 32 - GOOGLE INC.'S ANSWER to Complaint with Jury Demand, COUNTERCLAIM against Oracle America, Inc. by Google Inc.. (Zimmer, Donald) (Filed on 10/4/2010) (Entered: 10/04/2010)

10/04/2010 - 33 - MOTION to Dismiss filed by Google Inc.. Motion Hearing set for 11/18/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Zimmer, Donald) (Filed on 10/4/2010) (Entered: 10/04/2010)

Mr. Zimmer appears to be the one writing the actual filings.

Here's the motion to dismiss, as text:

***************************

DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address]
[phone]
[fax]

SCOTT T. WEINGAERTNER (Pro Hac Vice) [email]
ROBERT F. PERRY [email]
BRUCE W. BABER (Pro Hac Vice Pending) [email]
KING & SPALDING LLP [address]
[phone]
[fax]

Attorneys for Defendant
GOOGLE INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,

v.

GOOGLE INC.
Defendant.

Case No. 3:10-cv-03561-WHA
Honorable Judge William H. Alsup

GOOGLE INC.'S MOTION TO DISMISS
COUNT VIII OF PLAINTIFF'S
COMPLAINT OR, IN THE
ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT


Hearing Date: November 18, 2010
Hearing Time: 8:00 A.M.
Location: Courtroom 9, 19th Floor

(1)

TABLE OF CONTENTS

NOTICE OF MOTION AND MOTION 1
MEMORANDUM OF POINTS AND AUTHORITIES 2
  I. Introduction 2
  II. Argument 3
  A. Factual Background 3
  1. The Android Platform 3
  2. The Dalvik Virtual Machine 5
  3. Oracle's Copyright Claim 7
  B. Oracle Fails To State A Claim For Copyright Infringement 9
  1. The Applicable Pleading Requirements Are Well-Settled 9
  2. Proper Pleading of Copyright Infringement Requires Sufficient Factual Allegations Describing the Alleged Infringement 10
  3. Oracle's Claim For Copyright Infringement Is Deficient 11
  4. Oracle's Claim For Vicarious Copyright Liability Is Also Deficient 14
  C. Google Is Entitled To A More Definite Statement 14
  III. Conclusion 15

i

(2)

TABLE OF AUTHORITIES

CASES
A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001)
10
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009)
9-12
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)
9-11
Cutler v. Enzymes, Inc.,
No. 08-04650-JF, 2009 U.S. Dist. LEXIS 17942 (N.D. Cal. Feb 25, 2009)
10-12
Miller v. Facebook, Inc.,
No. 5:10-cv-264-WHA, 2010 U.S. Dist. LEXIS 31534 (N.D. Cal. Mar. 31, 2010)
10-12
Perfect 10, Inc. v. Visa Int'l Service Ass'n,
494 F.3d 788 (9th Cir. 2007)
14
Sega Enters. LTD. v. Accolade, Inc.,
No. 91-3871, 1992 U.S. Dist. LEXIS 4621 (N.D. Cal. Mar. 20, 1992)
14-15
STATUTES
17 U.S.C. § 106 10, 14
Fed. R. Civ. P 8(a)(2) 9
Fed. R. Civ. P. 11(b)(3) 13
Fed. R. Civ. P. 12(e) 1, 14
Fed. R. Civ. P. 12(b)(6) 1
Fed. R. Civ. P., Form 19 10-12

ii

(3)

NOTICE OF MOTION AND MOTION

TO NONPARTIES AND PLAINTIFF ORACLE AMERICA, INC. AND ALL ATTORNEYS OF RECORD, PLEASE TAKE NOTICE that the following motion will be heard at 8:00 A.M. on November 18, 2010, or as soon thereafter as counsel may be heard, in Courtroom 9, 19th Floor of this Court, located at 450 Golden Gate Avenue, San Francisco, California before the Honorable William Alsup.

Defendant Google Inc. ("Google") will and hereby does move this Court for an order dismissing Count VIII of plaintiff's "Complaint For Patent And Copyright Infringement" under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the claim for copyright infringement asserted in Count VIII fails to state a claim upon which relief can be granted. In the alternative, Google will and hereby does move this Court, in accordance with Rule 12(e) of the Federal Rules, for a more definite statement of the claim asserted in Count VIII. In support of this motion, Google respectfully shows that the claim for copyright infringement asserted in Count VIII of the Complaint is legally deficient. Count VIII does not identify any specific infringing work that is the subject of the alleged copyright infringement claim, does not identify with any specificity the manner in which Google allegedly infringed any copyrights of plaintiff Oracle America, Inc. ("Oracle"), and does not identify with any specificity the basis for any claim of vicarious infringement, inducement of infringement, or contributory infringement. As a result, Count VIII fails to state a claim for relief upon which relief can be granted. In the event that Count VIII is not dismissed, Google requests in the alternative that the Court enter an order requiring Oracle to provide a more definite statement of its claim of copyright infringement that provides sufficient detail so that Google may reasonably prepare a response to Oracle's claim. This motion is based on this Notice of Motion and Motion, the following Memorandum of Points and Authorities, the pleadings and papers on file in this action, any matters of which the Court may take judicial notice, any evidence or argument presented at the hearing on the motion, and any other matters the Court deems proper.

(4)

MEMORANDUM OF POINTS AND AUTHORITIES

I. Introduction

On August 12, 2010, Plaintiff Oracle America, Inc. ("Oracle") filed its Complaint For Patent And Copyright Infringement (Docket No. 1) ("Complaint") against Google. The Complaint is directed at Android, a publicly-available, open-source software platform that anyone, anywhere, may freely use. Android was and continues to be developed by Google with substantial contributions from others, both volunteer technology enthusiasts and corporate partners. Since its release in 2007, handset manufacturers and software developers have rapidly adopted Android — which is designed specifically for operation on devices with limited computing resources, such as mobile phones — as their platform of choice for next-generation mobile devices.

Count VIII of Oracle's Complaint seeks to assert a claim of copyright infringement against some unidentified portion of the Android "platform," which includes a variety of different types of materials, including software code, computer programs, specifications, reference materials and developer tools and resources. Count VIII, however, is so vague and general that it is impossible for Google to determine from the Complaint:

  • which portion or portions of the Android "platform" are the subject of the copyright infringement claim;

  • how Google allegedly infringed the copyrights in the two works identified in paragraph 11 and Exhibit H of Oracle's Complaint (the "Asserted Copyrights");

  • how any "users" of the Android platform may have allegedly infringed the Asserted Copyrights; or

  • how Google allegedly "encouraged, induced, caused, [or] materially contributed to" any acts of copyright infringement by any such other parties.

As a result of these deficiencies, Oracle's claim of copyright infringement fails to meet the pleading standards applicable to a claim of copyright infringement.

2

(5)

The deficiencies in Oracle's copyright infringement claim are both striking and telling in view of the fact that Android is an open-source platform, and that all of the relevant source code and documentation for Android is currently — and has for some time been — publicly available. Oracle's inadequately-pleaded accusations are striking because Oracle has had complete access to every piece of information that is relevant to any possible assertion of copyright infringement, yet Oracle still failed to meet even the minimum pleading standards. Oracle's inadequately- pleaded accusations are also telling because, notwithstanding Oracle's access to the allegedly infringing work, Oracle has not articulated a legally sufficient claim that puts Google on notice of either the factual basis or the substance of Oracle's copyright claim.

II. Argument

A. Factual Background

Because this dispute has not previously been before this Court, Google submits the following brief discussion of Android. Google believes that an explanation of the Android platform and the relationship among certain of its major components is essential to the understanding of the factual landscape underlying Oracle's Complaint and, accordingly, this Motion. Google submits that all of the facts stated herein are of public record, and are all matters of which the Court may take judicial notice if necessary. Google acknowledges, however, that the Motion is directed to the sufficiency of Plaintiff's Complaint, and the sufficiency of the pleading must be determined by the pleading itself.

1. The Android Platform

In November of 2007, Google and thirty-four other companies with an interest in the mobile device market formed the Open Handset Alliance ("OHA").1 The mission of the OHA — now made up of seventy-eight companies — is to provide a better experience for the world's three-billion mobile phone users by developing and promoting the first open, complete, and free

3

(6)

platform created specifically for mobile devices.2 The Android Platform — the cornerstone of the OHA's mission — was released the same month.3 As part of Android's first release, most of the software code that makes up the Android Platform was released to the public under a permissive open-source license known as the "Apache Software License 2.0."4 Approximately one year later, in September of 2008, the first full version of Android was released to the public.5 One month after the first full release, in October of 2008, the remainder of the Android source code was released to the public under the same Apache license.6 Android has undergone development by the OHA (including Google) and individual developers since its release.7 The most recent release of the Android platform — Version 2.2, Android's eighth release — includes more than 11 million lines of computer code that supports the operation of thousands of components.8 The key components of the Android Platform include:

  • the Software Development Kit ("SDK") that contains software tools and thousands of pages of documentation that assist developers in creating applications (commonly referred to as "apps") that run on Android;

  • the "kernel" that controls the basic aspects of the mobile device, such as security and memory management;

4

(7)

  • "libraries" that provide many basic programming functions, including for example reading and writing files, using the World Wide Web, and playing audio and video files;

  • an "application framework" that consists of libraries that provide Android- specific programming functions, such as displaying Android menus and dialogs and using phone-specific hardware such as the dialer, global positioning system, and microphone;

  • "applications" that provide the functionality that users see, such as the home screen, the phone dialer, and other utility functions; and

  • the "Android Runtime," which provides services to applications, such as executing Dalvik bytecodes, managing user notifications, and being informed of events such as position changes, hardware status changes, and incoming messages.9

All of the source code and documentation needed to implement these core features of Android is publicly available for download on the Android website.10

2. The Dalvik Virtual Machine

One aspect of the Android Platform referenced in Oracle's Complaint — but not specifically accused in Oracle's copyright infringement claims — is the Dalvik virtual machine (the "Dalvik VM"). Compl. at ¶ 12. A "virtual machine," in a general sense, is a software system that receives instructions, usually in the form of software code that has been compiled into an intermediate form, and outputs a different set of instructions that are understood by the

5

(8)

device on which the virtual machine is running.11 This is a common technique in computer science, used by many programming systems.12 Some famous examples include p-code, Python, and the Java platform, all of which include a programming language, a set of libraries and a virtual machine.13

There are several ways to create and execute Android software applications. For example, developers can create software for Android-based mobile devices in the C or C++ programming languages that run directly on the Linux kernel, bypassing the Dalvik VM entirely.14 Alternatively, developers can create software applications for Android-based mobile devices in other programming languages, such as the Java, Ruby or Scala programming languages that run on the Dalvik VM.15 In this instance, these software applications are converted into a set of intermediate instructions — i.e., Dalvik "bytecode" or files in the Dalvik Executable (.dex) format — through the use of the "dx" tool included with the Android platform.16 These .dex files can be executed on any mobile device with a Dalvik VM.17

6

(9)

The Dalvik VM is a custom-built system that has been optimized for running programs on battery-powered mobile devices that are more limited than desktop computers in terms of computing and memory resources.18 The Dalvik VM relies on the open-source Linux kernel for underlying functionality such as threading and low-level memory management.19 The Dalvik VM was independently developed by Google and the OHA.

The class libraries of the Dalvik VM incorporate a subset of Apache Harmony, a clean- room, open source implementation of Java developed by the Apache Software Foundation and released under the same permissive Apache license under which the OHA has released most of Android.20

3. Oracle's Copyright Claim

Oracle alleges in the Complaint that it purchased Sun Microsystems ("Sun") in January of 2010 and at that time became the owner of Sun's patents and copyrights in the Java "platform." Compl. ¶¶ 8-9. As to Oracle's copyright claim, the Complaint alleges that "Oracle America owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform" and that "Oracle America's Java-related copyrights are registered with the United States Copyright Office, including those attached as Exhibit H." Compl. ¶ 11. Exhibit H to the Complaint consists of certificates of copyright registrations obtained by Sun for two identified works, named "Java 2 Standard Edition 1.4" and "Java Standard Edition, Version 5.0" (the "Asserted Copyrights"). Compl. Ex. H. These registrations

7

(10)

appear to relate to versions of certain Sun Java materials that were released as open-sourced software in 2006 and 2007.21

Count VIII of the Complaint — the copyright infringement claim — alleges generally that "[t]he Java platform contains a substantial amount of original material (including without limitation code, specifications, documentation, and other materials) that is copyrightable subject matter." Compl. ¶ 38. The two operative paragraphs of Count VIII then state as follows:

39. Without consent, authorization, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America's copyrighted work, portions thereof, or derivative works and continues to do so. Google's Android infringes Oracle America's copyrights in Java and Google is not licensed to do so.

40. On information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America's copyrightable works, and works derived therefrom.

Compl. ¶¶ 39-40.

These paragraphs are mere conclusory statements apparently intended to assert two different types of copyright infringement claims against Google. First, Oracle apparently contends in paragraph 39 that Google itself infringes the Asserted Copyrights because "Google . . . copied, prepared, published and distributed Oracle America's copyrighted work, portions thereof, or derivative works and continues to do so." Compl. ¶ 39 (emphasis added). Second, Oracle apparently contends that Google is vicariously liable for alleged infringement of the Asserted Copyrights by others because "[o]n information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works

8

(11)

derived therefrom to manufacture and use functioning Android devices" and that, for reasons that are not explained, Google allegedly "has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America's copyrightable works." Compl. ¶ 40 (emphasis added).

The remainder of the allegations of Count VIII are general allegations that merely recite additional generalities and claims for different types of relief. Compl. ¶¶ 41-46. Importantly, the Complaint does not include any identification of any specific work created or distributed by Google that allegedly infringes the Asserted Copyrights, nor does it even identify the type of work (software code, reference materials, development kit materials) that allegedly infringes. The Complaint also does not include any explanation or identification whatsoever of any alleged unlicensed acts of infringement of the Asserted Copyrights by any other party (including those for which Oracle seeks to hold Google vicariously liable) or any alleged acts of Google that constitute inducement of infringement or contributory infringement with respect to any such alleged unlicensed acts of others.

B. Oracle Fails To State A Claim For Copyright Infringement.

1. The Applicable Pleading Requirements Are Well-Settled.

The Federal Rules of Civil Procedure require that the complaint must include a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P 8(a)(2). The United States Supreme Court's opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), confirmed that, although detailed factual allegations are not required, satisfying Rule 8(a)(2) requires the complaint to plead sufficient factual matter, accepted to be true, to state a claim to relief that is plausible on its face. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555, 570). A pleading that offers only labels and conclusions or a formulaic recitation of the elements of a cause of action is insufficient. Iqbal 556 129 S. Ct. at 1949. Courts in this district, including this Court, have applied Iqbal and Twombly to dismiss copyright infringement claims that merely state the elements of the claims

9

(12)

and legal conclusions without any underlying facts. See Miller v. Facebook, Inc., No. 5:10-cv- 264-WHA, 2010 U.S. Dist. LEXIS 31534, at *9 (N.D. Cal. Mar. 31, 2010).

2. Proper Pleading of Copyright Infringement Requires Sufficient
Factual Allegations Describing the Alleged Infringement.

A claim of copyright infringement requires the plaintiff to prove (1) ownership of a valid copyright and (2) violation of one of the exclusive rights granted by section 106 of the Copyright Act, 17 U.S.C. § 106. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Applying Iqbal and Twombly, courts in this district have recently dismissed claims of copyright infringement that did not include any factual allegations regarding how the defendant allegedly infringed the plaintiff's copyright. See Miller, U.S. Dist. LEXIS 31534 at *9; Cutler v. Enzymes, Inc., No. 08-04650-JF, 2009 U.S. Dist. LEXIS 17942, at *8-9 (N.D. Cal. Feb 25, 2009).

In both Miller and Cutler, the complaints lacked any facts that described in sufficient detail the infringing acts. In Miller, the complaint merely alleged that the defendant Facebook "reproduced and distributed" an infringing work, by, among other things, publishing the work in their application directory, allowing Facebook users to "search and view" the application. See Miller, U.S. Dist. LEXIS 31534, at *4, *8-9. On Facebook's motion to dismiss, this Court found such allegations deficient, and concluded that the plaintiff must provide "sufficient factual allegations to explain how defendant Facebook copied, displayed, or distributed infringing copies" of the work, and dismissed the complaint. See Miller, U.S. Dist. LEXIS 31534, at *9 (emphasis added). Similarly, the court in Cutler dismissed a complaint for copyright infringement that did not include any specific facts about the alleged acts of infringement. Cutler, 2009 U.S. Dist. LEXIS 17942, at *9 (granting motion to dismiss because "[a]side from claims of ownership, the complaint is devoid of any other specific facts related to the Published Work and alleged copyright infringement").

10

(13)

Although promulgated before the Supreme Court issued Iqbal and Twombly, the pleading forms in the Federal Rules of Civil Procedure confirm the need to plead sufficient factual support describing the acts of infringement. Fed. R. Civ. P., Form 19 (2007). Form 19 — the form complaint for copyright infringement — identifies the copyrighted work, identifies the allegedly infringing work, and explains how the alleged infringement occurred. See id. Specifically, the form pleading suggests an allegation to the effect that "[a]fter the copyright was issued, the defendant infringed the copyright by publishing and selling a book entitled ____, which was copied largely from the plaintiff's book." Id.

3. Oracle's Claim For Copyright Infringement Is Deficient.

Oracle's Complaint fails to satisfy the standards set forth in Iqbal, Twombly, and Form 19, and therefore dismissal of Count VIII would be fully consistent with the decisions in Miller and Cutler. This authority is clear — Oracle's Complaint must provide facts that identify or describe (1) the works in which a valid copyright is claimed;22 (2) the alleged acts of infringement, including identifying the allegedly infringing work or works, see Cutler, 2009 U.S. Dist. LEXIS 17942, at *9; and (3) how any accused infringer has infringed and how any party has induced or contributed to such infringement. See Miller, U.S. Dist. LEXIS 31534, at *9. Because Oracle's Complaint fails to provide any facts identifying any Google work that allegedly infringes the Asserted Copyrights, and fails to provide any factual allegations as to how Google or any third parties are allegedly infringing, Oracle's Complaint does not state a claim for copyright infringement.

Oracle's Complaint includes only three allegations relating to direct copyright infringement: (1) that Oracle owns copyrights in the Sun materials that comprise the Java platform and, more specifically, in the Sun works that are the subject of the copyright

11

(14)

registrations shown in Exhibit H, Compl. ¶ 11; (2) that Google has "copied, prepared, published and distributed Oracle America's copyrighted work, portions thereof, or derivative works and continues to do so," Compl. ¶ 39 (emphasis added); and (3) that "Google's Android infringes Oracle America's copyrights in Java and Google is not licensed to do so." Compl. ¶ 39. These allegations:

  • do not identify the type(s) of "copyrighted work" allegedly copied;23

  • do not specify whether Google has allegedly copied and distributed entire works of Sun / Oracle, "portions thereof" (and, if so, what portions), or "derivative works";

  • do not identify any specific work or works of Google — or even the types of materials — that Google has created by allegedly copying, preparing, publishing, and distributing Sun / Oracle's copyrighted work; and

  • do not provide any facts that suggest how any alleged infringement has occurred.

Rather than allege facts to support its claim, Oracle instead pleads nothing more than a rote recitation of certain of the exclusive rights the Copyright Act provides in 17 U.S.C. § 106, with absolutely no supporting facts. Like the complaints in both Miller and Cutler, there is no factual allegation as to how any Google materials relating to Android allegedly infringe the Asserted Copyrights. See Compl. ¶ 39. Indeed, Oracle fails to provide any assertion as to which part of Android — which even Oracle concedes is an "operating system software platform" consisting of numerous types and extensive amounts of materials, Compl. ¶ 12 — allegedly infringes the Asserted Copyrights. See Compl. ¶ 39. Oracle's Complaint is precisely the type of bare recitation of elements that the Supreme Court warned against in Iqbal.

12

(15)

Oracle's allegations also fail to meet the requirements of Fed. R. Civ. P., Form 19, which requires factual pleadings that identify both the infringing work, and how that work infringes. See Fed. R. Civ. P., Form 19 ("the defendant infringed the copyright by publishing and selling a book entitled _____, which was copied largely from the plaintiff's book"). Oracle's Complaint does not come close to even this form pleading. Oracle's Complaint does not allege that any work of Google — Android or otherwise — is a copy of, or is substantially similar to, any of Sun / Oracle's copyrighted works. See Compl. ¶ 39.

This deficiency is compounded by the fact that "Android" as a whole contains over 11 million lines of computer code, thousands of pages of documentation, and thousands of components.24 See Compl. ¶ 39 ("Google's Android infringes Oracle America's copyrights"). Oracle's Complaint provides no indication of what part or parts of "Android," which could include code, documentation, specifications, and many other types of materials, allegedly infringe.

There is no justification for Oracle's failure to plead sufficient facts to assert a copyright infringement claim. All of the relevant materials, including the Android source code, has been publicly available since the Android Open Source Project released the code base in 2008.25 Every fact that Oracle could have required to properly plead copyright infringement was available to Oracle before it filed this lawsuit, and Oracle and its counsel were required to make a good-faith evaluation of the merits of the claim. See Fed. R. Civ. P. 11(b)(3). Because all of the information Oracle requires is already publicly available, Oracle cannot excuse its vague pleading by claiming that it needs discovery to identify the accused works or acts.

13

(16)

4. Oracle's Claim For Vicarious Copyright Liability Is Also Deficient.

Oracle's assertion of vicarious copyright liability suffers from the same deficiencies as its claim of infringement by Google. A claim for vicarious liability for copyright infringement requires the plaintiff to plead acts of infringement of the Asserted Copyrights by a third party, and knowledge and inducement of those acts by the defendant. See Perfect 10, Inc. v. Visa Int'l Service Ass'n, 494 F.3d 788, 795 (9th Cir. 2007). Oracle has not pleaded with any specificity any alleged acts of infringement of the Asserted Copyrights by a third party or any acts of Google that supposedly induced such infringement.

Oracle's Complaint asserts only that third parties infringe the Asserted Copyrights because "users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform." Compl. ¶ 40. Neither "obtaining" nor "using," however, are among the exclusive rights of a copyright owner under the copyright statute. See 17 U.S.C. § 106. For this reason alone, the claim of vicarious liability for infringement should be dismissed. Oracle also fails to identify any works of third parties that allegedly infringe the Asserted Copyrights, any specific acts of any third parties that allegedly infringe Oracle's copyright rights, or any acts of Google that allegedly induced or contributed to any such infringement. Oracle's claim against Google of vicarious liability for copyright infringement therefore fails to adequately state a claim for infringement.

C. Google Is Entitled To A More Definite Statement.

If the Court declines to dismiss Count VIII of Oracle's Complaint, Google respectfully requests that the Court order Oracle to provide a more definite statement of its claims for copyright infringement. Federal Rule of Civil Procedure 12(e) allows a party to move for a more definite statement when a pleading is so vague or ambiguous that the party cannot reasonably prepare a response. Fed. R. Civ. P. 12(e). Although generally disfavored, this district has found such relief to be appropriate in a copyright case where, as here, the complaint is impermissibly

14

(17)

vague regarding the alleged claim of infringement. See Sega Enters. LTD. v. Accolade, Inc., No. 91-3871, 1992 U.S. Dist. LEXIS 4621, at *4 (N.D. Cal. Mar. 20, 1992).

The Sega court noted that the complaint vaguely alleged infringement of "other works" (among other things), and ordered plaintiff to provide a more definite statement specifying "the particular 'other works' which are subject to the copyright claim and registration of those works, the acts constituting infringement of those works, and the dates the infringement occurred." Id. Similarly, Oracle's Complaint asserts that Google has "copied, prepared, published, and distributed Oracle America's copyrighted work, portions thereof, or derivative works." Compl. ¶ 39. Oracle should at a minimum be required to identify any specific "copyrighted work" or "portion thereof" that Google allegedly copied or distributed, any "derivative works" known to Oracle that form the basis of its claim, as well as the acts constituting the alleged infringement.26

Finally, as discussed above, Oracle's Complaint fails entirely to identify any facts giving rise to Oracle's claim of vicarious infringement based on alleged acts of infringement by third parties. Oracle's more definite statement should include specification of the alleged acts of such parties that Oracle believes infringe its Asserted Copyrights and how such acts infringe, as well as the acts of Google that Oracle believes make Google liable for any such alleged infringement.

III. Conclusion

Oracle's Complaint includes impermissibly vague and broad allegations of copyright infringement. In particular, the Complaint does not specifically identify any allegedly infringing works of Google, how Google has allegedly infringed Oracle's rights in the two Sun works attached to the Complaint, or how Oracle believes its claim of vicarious liability for copyright infringement arises. For these reasons, Count VIII of Oracle's Complaint fails to meet the

15

(18)

minimum pleading standards required by the law, and fails to properly put Google on notice of the substance of Oracle's claims. Accordingly, the Court should dismiss Count VIII of the Complaint, or, in the alternative, should require Oracle to provide a more definite statement of its copyright claims.

DATED: October 4, 2010

Respectfully submitted,

KING & SPALDING LLP

By: /s/ Donald F. Zimmer, Jr.______

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice Pending)
[email]
KING & SPALDING LLP
[address]
[phone]
[fax]

DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address]
[phone]
[fax]

ATTORNEYS FOR DEFENDANT
GOOGLE INC.

16

(19)

1 See Android Timeline, http://www.android.com/timeline.html.
2 See Open Handset Alliance, http://www.openhandsetalliance.com/index.html, Alliance Overview, http://www.openhandsetalliance.com/oha_overview.html.
3 See id.; Android Timeline, http://www.android.com/timeline.html.
4 See Licenses — Android Open Source, http://source.android.com/source/licenses.html.
5 See Android Timeline, http://www.android.com/timeline.html.
6 See id.
7 See Philosophy and Goals — Android Open Source, http://source.android.com/about/philosophy.html.
8 See Android SDK, http://developer.android.com/sdk/index.html; Android 2.2 Platform, http://developer.android.com/sdk/android-2.2.html.
9 See What is Android?, http://developer.android.com/guide/basics/what-is-android.html; http://developer.android.com/guide/developing/tools/index.html.
10 See Android Developers, http://developer.android.com/index.html. The overwhelming majority of the Android software source code and its supporting documentation is publicly available. The exceptions, such as low-level hardware drivers which are proprietary to hardware makers, and proprietary third party (and Google) business applications — none of which are mentioned in Oracle's Complaint — are peripheral to the core Android platform.
11 See About the Java Technology, http://download.oracle.com/javase/tutorial/getStarted/intro/definition.html (describing the process of creating Java bytecode and translating the Java bytecode into machine instructions using the Java virtual machine); Parrot — The Parrot Primer, http://docs.parrot.org/parrot/latest/html/docs/intro.pod.html (describing basic virtual machine functionality).
12 See The Java Virtual Machine Specification (2d ed. 1999), at http://java.sun.com/docs/books/jvms/second_edition/html/Introduction.doc.html ("It is reasonably common to implement a programming language using a virtual machine; the best- known virtual machine may be the P-Code machine of UCSD Pascal.").
13 See id., Glossary — Python v3.1.2 documentation, http://docs.python.org/py3k/glossary.html#term-bytecode.
14 See http://developer.android.com/sdk/ndk/index.html#overview (describing the use of native code on Android).
15 See What is Android?, http://developer.android.com/guide/basics/what-is-android.html; http://code.google.com/p/android-ruby; http://www.assembla.com/wiki/show/scalaide/Developing_for_Android.
16 See id.
17 See id.
18 See Glossary — Android Developers, http://developer.android.com/guide/appendix/glossary.html; What is Android?, http://developer.android.com/guide/basics/what-is-android.html; Android Overview, http://www.openhandsetalliance.com/android_overview.html.
19 See What is Android?, http://developer.android.com/guide/basics/what-is-android.html.
20 See Dalvik — Android Open Source, http://source.android.com/porting/dalvik.html; Apache Harmony — Open Source Java Platform, http://harmony.apache.org; Apache Harmony — Apache License, http://harmony.apache.org/license.html; Licenses — Android Open Source, http://source.android.com/source/licenses.html.
21 See Jim Inscore, Opening Up: Laurie Tolson on Open Source Strategy for the Java Platform, available at http://java.sun.com/developer/technicalArticles/javaopensource/OS_qa ("Sun will release several significant components of Java SE by the end of 2006. ... The rest of a buildable JDK will be released in early 2007").
22 Oracle's Complaint appears to identify two specific Sun works that presumably are the subject of the copyrights on which Oracle's claim is based, namely the works entitled "Java 2 Standard Edition 1.4" and "Java 2 Standard Edition, Version 5.0," which are the works identified in the Asserted Copyrights shown in Exhibit H to the Complaint.
23 The copyright registrations attached to Oracle's Complaint as Exhibit H state that the Sun works that are the subject of the registrations include at least both "computer code" and "documentation and manuals." Complaint, Ex. H, Form TX 6-196-514 at space 6(b) and Form TX 6-066-538 at space 6(b).
24 Android is a complete set of software for mobile devices: an operating system, middleware and key mobile applications. http://www.openhandsetalliance.com/android_overview.html. It includes a full set of tools for developers, id., and an entire suite of reference documentation, http://developer.android.com/reference/packages.html. The Dalvik virtual machine is only one of over 240 separate source code modules that make up Android. http://android.git.kernel.org.
25 See, e.g., http://www.android.com/timeline.html; http://android.git.kernel.org.
26 Oracle also contends that the "copyrightable" portions of the "Java platform" include, "without limitation code, specifications, documentation, and other materials." Compl. ¶ 38. To the extent Oracle believes that Google has infringed or is liable for infringement by any party of the copyrights in any works other than those that are the subject of the two registrations included in Exhibit H to the Complaint, Oracle should identify any and all such other works and the copyright registrations for them. See Sega, 1992 U.S. Dist. LEXIS 4621, at *4.

  


Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim | 315 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: jjs on Tuesday, October 05 2010 @ 02:18 PM EDT
Korrections -> Corrections in title


---
(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc,
etc)

[ Reply to This | # ]

Newspicks Here
Authored by: jjs on Tuesday, October 05 2010 @ 02:20 PM EDT
Please post a link to the newspick item, so it can be found after the newspick
scrolls off the bottom of the page.

---
(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc,
etc)

[ Reply to This | # ]

Off Topic Here
Authored by: jjs on Tuesday, October 05 2010 @ 02:21 PM EDT
Remember to switch to HTML mode for links.

Remember that posting on-topic here is off-topic for the thread.

---
(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc,
etc)

[ Reply to This | # ]

Comes Documents Here
Authored by: jjs on Tuesday, October 05 2010 @ 02:24 PM EDT
Please post the HTML of the document as Plain Old Text, to make it easy for PJ
to copy and paste.

---
(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc,
etc)

[ Reply to This | # ]

Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: Tezzer on Tuesday, October 05 2010 @ 02:36 PM EDT
Wow! What a response. Oracle are going to need some very fast pedaling I'm
thinking - and much of it could be backwards.

I wonder if our friends at Microsoft are watching.

---
Kandor

[ Reply to This | # ]

Google Prays for Judgement
Authored by: cpeterson on Tuesday, October 05 2010 @ 02:55 PM EDT

i. And we'll take Larry's boat, too, so we can paint a little green robot on the side.

[ Reply to This | # ]

Doesn't attack software patents per se
Authored by: Anonymous on Tuesday, October 05 2010 @ 03:05 PM EDT
Well, I suppose if Google thinks it can get a quick dismissal, it doesn't want
to muddy the waters.

Still, if Google has to go to trial, I'd like to see them amend and go after
software patents per se. Same with Motorola. We're starting to get opportunities
to do that now.

[ Reply to This | # ]

Echoes of SCO v IBM?
Authored by: rsteinmetz70112 on Tuesday, October 05 2010 @ 03:13 PM EDT
I wonder if some of this isn't designed to keep Oracle from going on an SCO like
fishing trip inside Google?

Certainly all of the alleged infringing materials are out there in public, why
can't Oracle be more specific.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: Anonymous on Tuesday, October 05 2010 @ 03:33 PM EDT
My suspicion is that Oracle will submit a request to file revised claims,
substituting words like "copies" and "distributes" where
applicable.

How they intend to dance around the open source license, I can't guess. Perhaps
by implying "this fork isn't licensed, and (they) used it"?

[ Reply to This | # ]

Google's Answer - Dalvik is not patentable
Authored by: paivakil on Tuesday, October 05 2010 @ 04:02 PM EDT
A quick reading suggests that Google wants to assert non-patentability of
Dalvik, since it is software based and not tied to any specific hardware /
hardware platform.

[ Reply to This | # ]

Wow that's what I was hoping for from Google!
Authored by: SilverWave on Tuesday, October 05 2010 @ 04:21 PM EDT
Well done, well done indeed :-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: jvillain on Tuesday, October 05 2010 @ 06:00 PM EDT
I sure hope they are enjoying the hardware business they bought, because they
couldn't be mucking up the software side any worse. Their total lack of
sophistication as to how open source works and what makes it tick is shocking.

It will be interesting to see if Google trots out what Oracle told the
anti-trust regulators about how they would deal with competitors using Java vs
what they are really doing. I have a feeling that will come back to bite them.

[ Reply to This | # ]

Not much in the way of undisputed facts
Authored by: cpeterson on Tuesday, October 05 2010 @ 06:10 PM EDT

In paragraph 1 of their complaint, Oracle starts out with just a simple introduction.

1. Oracle America, Inc. ("Oracle America") is a corporation organized under the laws of the State of Delaware with its principal place of business at 500 Oracle Parkway, Redwood City, California 94065. Oracle America does business in the Northern District of California.

Google isn't going to let even that slip past unchallenged:

1. Google is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 1, and therefore denies them.

Is that kind of like a gauntlet across the face?

[ Reply to This | # ]

Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: markonhawthorne on Tuesday, October 05 2010 @ 07:42 PM EDT

There is nothing like dragging high-tech stuff through court
to produce high-quality documentation about it.

Mark

[ Reply to This | # ]

They don't KNOW???
Authored by: Ed L. on Tuesday, October 05 2010 @ 08:38 PM EDT
There is no way, from the complaint, to know why Oracle thinks it has such a claim. I thought we'd find out when Google responded, but they don't know either.
Waddaya mean they don't know??? Can't they just Google for it?

---
Real Programmers mangle their own memory.

[ Reply to This | # ]

Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: Anonymous on Tuesday, October 05 2010 @ 11:16 PM EDT
There are several ways to create and execute Android software applications. For example, developers can create software for Android-based mobile devices in the C or C++ programming languages that run directly on the Linux kernel, bypassing the Dalvik VM entirely.14 Alternatively, developers can create software applications for Android-based mobile devices in other programming languages, such as the Java, Ruby or Scala programming languages that run on the Dalvik VM.15 In this instance, these software applications are converted into a set of intermediate instructions — i.e., Dalvik "bytecode" or files in the Dalvik Executable (.dex) format — through the use of the "dx" tool included with the Android platform.16 These .dex files can be executed on any mobile device with a Dalvik VM.17 6
As for the second claim (that Google induces copyright infringement), this statement alone disproves that. After all the developer can write their application in C/C++ which bypasses every Virtual Machine (Java or otherwise) and interacts with the kernel directly. So, if that's an option, how would Google be requiring developers to use the copyrighted platforms (disputed) as Oracle claims? Have a great day:) Patrick.

[ Reply to This | # ]

Google Searches in Vain or the Oracle is Blind
Authored by: webster on Wednesday, October 06 2010 @ 12:07 AM EDT


It is a familiar lawyers' club. They both stipulated to give Google an extension of time within which to file their answer. Google took advantage of it to also file a motion. Google also declined to consent to a magistrate so they eliminate the appeal to a District Judge and all those extra steps on the familiar path worn by SCO. Google made counter claims for declarative relief. They did not hit them with any unrelated patent or copyright claims. Maybe they could buy or borrow some database patents and sue them later.

PJ asks, "What could Oracle be thinking?" They could be thinking that the Apache Harmony libraries offend Oracle. That is problematic, but it can be made so for all. The fact that Google does not get any fee for Android is a severe problem. It cuts potential damages immensely. It makes them impossible to measure, jobs for Botosan and Pisano. Maybe each side will hire one. What about Java and Dalvik bytecode? Don't they both make the computer work and do the same things? Don't Dalvik VM's and Java VM's do the same things on your screen? Don't they both say "Hello World" in binary? What are people that know nothing about Google or Oracle going to think about this? Are there such people in Oakland? What's going to happen when the jurors realize the parties are fighting over things their iPhones already do?

Specificity: Or the lack thereof. That old BSF trademark, or should we say "method and concept?" They didn't plead the infringement. Have they told Google in discussions? That discussion should have been settle or take your chances. Now Oracle will have to say they specified or be accused of acting in bad faith or bluffing. This "take-my-word-for-it-and pay" approach shows it to be corporate gamesmanship or more acurately, legal terrorism. Few entities can fight these battles and still operate. Even without substance a large entity can bully its way to market share. Usually the big boys struggle a while and split the pie on one side of middle with some toppings. The judge's reaction might determine the length of this battle.

Oracle has open-sourced the code referenced in their complaint. Android is open source. This is a major hurdle for Oracle. Even if they allege some proprietary code, they will stumble over the parallel parts in the code they open-sourced. It is going to be hard to prove by a preponderance of the evidence when they hold back the code and confuse it with their open source.

Oracles claim for vicarious liability is also complicated by the open source code. It is free and available to all who want to use it. Google put it on the internet. It is hard to find them responsible for those that download it, install it, and then sell a phone. In fact, the phone companies are crippling Android and adding their own costly wares so as to lock their patrons in. [It is no wonder so many root their phones or install custom MOD's to enjoy full function. You can't blame Google for this phenomena. But, alas, this rant digresses.]

Google points out that since Android is open source and freely downloadable, Oracle does not need discovery. Fat chance. They will get it. The scouts will report soon what this judge has been doing lately. If he is steeped in software copyrights, all the better. He should get plenty of rest.

~webster~


[ Reply to This | # ]

What about the Oracle history?
Authored by: IMANAL_TOO on Wednesday, October 06 2010 @ 12:58 AM EDT
I've felt that Oracle has been a tough but decent company. One thing I know
nothing about is its litigation history. Have they been a litigation company in
disguise used to run over small insignificant companies in order to maintain
prominence?


---
______
IMANAL


.

[ Reply to This | # ]

Maybe one minor hole in google's argument - payment #17
Authored by: tqft on Wednesday, October 06 2010 @ 02:00 AM EDT

"17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform. "
Linus Digs Into Copyright Law and Notices Something Useful
"'The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.' "
As Android is sort of open source, I haven't checked the licence Google may trip up here, improvements to the code could be considered a "financial" gain as above.


---
anyone got a job good in Brisbane Australia for a problem solver? Currently under employed in one job.

[ Reply to This | # ]

Copyright Infringement Claim
Authored by: Daddl on Wednesday, October 06 2010 @ 07:15 AM EDT
Could this claim refer to the naming of the reimplemented Java namespaces,
classes and methods? Even in a clean room implementation these could be
considered (at least in their entirety, we're not talking about a few dozend
classes here) an intelectual work that deserves copyright protection. If I
understand correctly, the Sun promise was only valid for *complete* (which the
Android libraries aren't) Java SE implementations...

[ Reply to This | # ]

Give me the Works!
Authored by: Ian Al on Wednesday, October 06 2010 @ 08:16 AM EDT
Well, not the Works, exactly.
Oracle's Complaint appears to identify two specific Sun works that presumably are the subject of the copyrights on which Oracle's claim is based, namely the works entitled "Java 2 Standard Edition 1.4" and "Java 2 Standard Edition, Version 5.0," which are the works identified in the Asserted Copyrights shown in Exhibit H to the Complaint.
I would be most grateful if someone could outline what those works contain that could be copyright and whether they are published under a license on the interweb.

If they are installable binaries then they are protected by copyright, but I don't care about those because the Harmony binaries are not copies of the Sun binaries. What I am interested in is any manuals on the use of the language or the use of the compiler (Javec?). In addition, are the core class library definitions included and is there any indication that they are licensed for clean-room implementations?

I would use Google, but, well, you know, they might have modified the interweb, or something. Actually, I don't want to discover something that was not available to the Harmony project at the time they did their work.

---
Regards
Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

[ Reply to This | # ]

Pre-Filing Discussions
Authored by: Anonymous on Wednesday, October 06 2010 @ 01:54 PM EDT
I concur with other Groklawrians who have enjoyed reading Google's spirited
defence of Oracle's initial Compliant before the Court, but I am slightly
confused on one point.

It seems to me that one of the first questions that any Court must ask when
faced with this form of dispute is, "Have the parties met and attempted to
resolve this case without the need to resort to bringing the matter before a
Judge?" In the event that these parties had responded negatively, then of
course the Judicial response would have been the equivalent of, "Get thee
hence and do not darken this doorstep again until you have exhausted all avenues
of civil discourse on this topic."

So let's make the [dangerous] assumption that such conversations have been
running since a period of time shortly after Oracle Corporation's purchase of
Sun Microsystems. If that's the case, then either "Oracle America"
disclosed the allegedly infringing materials, or they did not.

If they did, then Oracle are merely forcing Oracle to re-plead something that
they should have got right first time - perhaps equivalent to a legal snub. If
they did not, then presumably Google's motion would have detailed that no such
discussions took place, or that Oracle declined when invited to reveal the
allegedly infringing materials.

I ask because if Google's submission took the latter form, then I would hope
that the Court would be more inclined to give Oracle America a suitable slap for
their impertinence - i.e. failing to give Google sufficient information to
review and respond to the complaint.


I cannot imagine that an organisation the size of Oracle is going to pack up and
go home after this little misadventure, so we shall soon return to "square
one".

There is one other reason that Oracle may have taken this line. I can't imagine
any Court wishes to have it's time wasted by poorly thought-out or presented
motions. Is it possible that Google is trying to take the moral high ground
here?

I'd be interested to know what anyone experienced with the subtleties of this
sort of thing might think. Am I reading too much into this, or was this a case
of "Let the game commence"?

[ Reply to This | # ]

License defenses, JLS, and OpenJDK
Authored by: mattflaschen on Wednesday, October 06 2010 @ 04:39 PM EDT

Oracle's copyright claim seems quite meritless, but Google's license defenses aren't strong either.

PJ wrote, "There is no copyright infringement of open source code if you just use it according to the license."

That's clearly true. However, I don't think Google is using OpenJDK. They're certainly not distributing it.

Oracle's claims are very vague. If they are alleging (as suggested above) that simply using a legally acquired copy of Sun javac (OpenJDK or proprietary variant), then running dx is infringing, I find that extremely dubious. It might be applicable for the proprietary version of javac if there is an enforceable EULA restriction. However, Google can likely adapt Android to use OpenJDK instead. People have already done this even though it's not officially supported. Then, GPLv2 should protect them for future uses, because it says, "The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program." I don't think the output of javac can be considered derivative of javac.

If Oracle is alleging Google actually distributes infringing code under the Apache 2.0 License, then there is no way OpenJDK can help them. There should be no OpenJDK code in Android (and I don't believe there is), but if there were, Google would not be complying with the GPL.

I also don't think the JLS license helps because it requires one "implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by SUN, without subsetting or supersetting." Android doesn't meet this requirement.

A better defenses for Google is laches. This applies particularly if the allegedly infringing code has been in Harmony for a while. Google can argue that Sun/Oracle had sufficient time to contact/sue Apache, which would have obviously served as a warning to Google.

The congratulation s post by Jonathan Schwartz helps the estoppel defense, but it probably isn't enough. However, technical cooperation, such as the NetBeans support mentioned in the post, may be more persuasive. I think this also goes to unclean hands.

[ Reply to This | # ]

SCOracle?
Authored by: Anonymous on Thursday, October 07 2010 @ 10:46 AM EDT
maybe we can suggest that they bid for SCO then they can be called SCOracle

[ Reply to This | # ]

  • SCOracle? - Authored by: Anonymous on Thursday, October 07 2010 @ 07:30 PM EDT
Google Answers Oracle, Counterclaims, and Moves to Dismiss Copyright Infringement Claim
Authored by: Anonymous on Monday, October 11 2010 @ 11:44 AM EDT
How will a court find a Jury that doesn't hate Oracle by default?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )